Condiment War is a draw (so far)

The makers of two ketchup-based condiment mash-ups have been duking it out in a trademark infringement lawsuit. Dennis Perry, an entrepreneurial fellow from Lacombe, Louisiana, created “Metchup,” a blend of Walmart-brand ketchup and mayonnaise (or sometimes mustard). He also registered Metchup as a trademark. Perry sold his sauce exclusively through the lobby of his nine-room hotel, which was adjacent to his used car lot. Since 2010, Perry produced and sold somewhere between 50 to 60 bottles of Metchup. The Defendant, H.J. Heinz Company, created “Mayochup” a blend of ketchup and mayonnaise. When Heinz began marketing its sauce in the U.S. in 2018, Perry sued for infringement of his Metchup trademark.
The district court dismissed Perry’s claims, finding there was no likelihood of confusion. It also cancelled his Methcup trademark, finding that Perry could not show that he had used the mark in interstate commerce (i.e., outside of Louisiana). In reversing the abandonment finding, the U.S. Fifth Circuit indicated that it was Heinz’s burden to show that Perry had not sold Metchup beyond the borders of Louisiana – not Perry’s. The appellate court held that abandonment requires complete discontinuance of the mark and minor or sporadic use in good faith will defeat an infringer’s abandonment defense. While a trademark can be cancelled for abandonment if it is not used in interstate commerce, the mark is not abandoned just because sales are slow or few in number.

Dicamba use still at risk?

The new EPA administration has directed the Department of Justice to seek stays of litigation involving EPA’s regulations as part of a broad review of the Trump Administration’s environmental policies. Basically the EPA wants to slow down or pause pending litigation while it reviews the prior policies. One of the cases in which EPA received a stay was a lawsuit brought by the American Soybean Association and Plains Cotton Growers to force the EPA to (i) eliminate for the June/July 30 cutoffs for OVT dicamba applications, and (ii) eliminate the buffers for neighboring crops & endangered species. The suit also seeks a declaration that dicamba will have “no effect” and is “not likely to adversely affect” endangered species. EPA’s request for a stay in the case is at least an indication that it may take a harder look at the dicamba registrations for use in dicamba-tolerant crop technologies.

As DTN recently reported, Corteva has recently abandoned efforts to register a new dicamba product and has effectively backed away from dicamba herbicides with its decision to also discontinue sales of FeXapan.

Cape Law Firm’s Frequently (or Randomly) Asked Questions

“What if my hemp tests “hot?”

Before hemp can be commercially marketed, it must be tested to confirm that it contains 0.3% or less of delta-9 THC. The THC content of the plant is influenced by the environment, growing conditions, and plant genetics. If the test indicates the hemp is “hot” (i.e., over the 0.3% THC limit), under USDA Final Rule for hemp production, a grower has various options:

• Get the hemp re-tested to determine if there was an error. Re-testing can be done by the same lab, or a different lab.
• Remediate the crop, either by removing the flower material and retaining the remainder of the plant, or by shredding the entire plant into homogeneous biomass. Remediated hemp must be re-tested to determine compliance with THC levels.
• Dispose of the crop. This can be accomplished on-farm through typical agricultural practices, discing, mowing, mulching, burning, etc. Or it can be disposed through a “reverse distributor,” which is a person registered with the DEA to dispose of marijuana.